New S.G. Clement in Modem Hot Seat

7/12/2004 9:34 AM Eastern

By: Ted Hearn

With a huge cable-modem-litigation decision pending, Attorney General John Ashcroft has named Paul Clement as acting U.S. solicitor general, a position with significant influence over cases accepted by the U.S. Supreme Court.

As principal deputy solicitor general, Clement automatically became acting solicitor general Friday, the effective resignation date of solicitor general Theodore Olson, who elected to rejoin his old Washington, D.C.-based law firm.

Clement has until July 29 to decide what Comcast Corp. chairman and CEO Brian Roberts has publicly declared cable’s most important regulatory issue: the regulatory status of cable-modem service.

Reversing the Federal Communications Commission, a panel of the U.S. Court of Appeals for the Ninth Circuit declared last October that cable-modem service is partly a telecommunications service.

Clement’s support is considered critical in improving the odds that the high court will take the case. The Supreme Court receives thousands of appeals each year, but it only agrees to docket between 80-110 cases annually.

The National Cable & Telecommunications Association is planning to file an appeal with the high court regardless of Clement’s decision.

An FCC source said last week that the Department of Justice was leaning toward seeking Supreme Court review.

Clement is facing pressure from the DOJ’s Criminal Division, which wants to preserve the telecommunications-service classification in order to avoid any diminution in its wiretapping authority under the Communications Assistance for Law Enforcement Act of 1994 (commonly known as CALEA).

In his decision, Clement has to weigh competing goals within the Bush administration -- the continued rollout of broadband facilities and services against the stated need of law enforcement to prevent another Sept. 11, 2001-type attack on the United States.

The FCC held that cable-modem service is an interstate information service. DOJ lawyers argued that under CALEA, they have no authority to order information-service providers to spend the money to install wiretapping equipment that can track criminal activity on a real-time basis.

According to his DOJ biography, Clement was named principal deputy solicitor general in February 2001, when he was 34.

In 1993, he served as a law clerk to Supreme Court Justice Antonin Scalia. To the extent that it matters, Scalia has routinely criticized Ninth Circuit rulings and has tended to support the FCC when the agency invokes its “expert agency” defense in crafting rules designed to fill gaps in telecommunications law.

In 1992, Clement was also a clerk to Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit.

Clement received his undergraduate degree from Georgetown University in 1988, his master’s degrees from Cambridge University in 1989 and a law degree from Harvard Law School in 1992, according to the DOJ.